Appellees, Sheila, Manuel, Isidoro and Benjamin Santiago were convicted by a judge sitting without a jury in Philadelphia County. All four appellees were found guilty of illegal possession of heroin and conspiracy.*fn1 Each was sentenced to a prison term of two to five years. The indictments were laid under The Drug Device and Cosmetic Act, September 26, 1961, P.L. 1664, § 1 et seq., 35 P.S. § 780-1 et seq.

On appeal the Superior Court affirmed the convictions. Commonwealth v. Santiago, 223 Pa. Super. 493, 305 A.2d 378 (1973). That court, however, vacated the sentences and remanded the cases for resentencing under the new Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P.L. 165, No. 64, § 1 et seq. effective June 14, 1972, 35 P.S. § 780-101 et seq. (Supp.1974-75). The Superior Court held that the sentences were illegal on the premise that the judge should have applied the

[ 462 Pa. Page 220]

sentencing provisions of the new Drug Act of 1972. Because the Superior Court found the analogous crime in the new Drug Act to be simple illegal possession of heroin, their order would result in a sentence of not more than one year for each individual.*fn2 The Commonwealth appealed from the order of the Superior Court and we granted allocatur limited to a determination of which Drug Act applies for the purpose of sentencing. We also permitted Sheila Santiago to raise the issue of the refusal of the trial court to recognize the defense of coverture.*fn3

On January 8, 1972, five officers of the Philadelphia Police Department went to the home of Manuel and Sheila Santiago to serve a search warrant. When the officers knocked on the door, Sheila Santiago appeared in an upstairs window and inquired as to what the officers

[ 462 Pa. Page 221]

wanted. When Officer Ira Andrews announced his identity and purpose, she then called her husband who asked the same question. Officer Andrews answered them, but when the door was not opened, the officers forcibly entered with the use of a sledge hammer and ran upstairs to the second floor rear bedroom where they found the four Santiagos. As Officer Andrews entered the room, he saw Sheila Santiago throw something out of an open window. Upon retrieving it, the package was identified as a bundle of 25 packets of heroin. Seventeen other bundles were found on the bed, around which the other three appellees were seated. Also on the bed were strainers, spoons, razor blades, hundreds of empty glassine packets, and rubber bands. Two additional pouches containing another half a pound of heroin were found under the bed. The trial judge characterized this as a wholesale drug operation for cutting and bagging heroin which had an estimated "street value" exceeding $250,000.00.

After a review of the record we are satisfied that the order of the Superior Court must be reversed and the judgment of sentence of the trial court reinstated.

The new Drug Act applies to all cases not final as of June 14, 1972, which is the effective date of the Act.*fn4 The Santiagos were not sentenced until October 1972. At that time their case was not final when the new Drug Act went into effect. Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973); Commonwealth v. Thomas, 450 Pa. 548, 301 A.2d 359 (1973). Cf. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968).

[ 462 Pa. Page 222]

In Commonwealth v. Thomas, supra, we devised a formula by which we would determine whether the Drug Act of 1972 would affect a defendant's sentence. We stated:

"Three elements must be present before a pending prosecution can be governed by the new Controlled Substance Act: (1) the original offense charged must be similar to one set out in the new Act; (2) the penalties provided in the new Act must be less than those established by the prior law; and (3) the case must not be finally litigated." Id. 450 Pa. at 555, 301 A.2d at 364.

The presence of the third element has been conceded. The critical issue presented in this appeal is whether the original offense charged is similar to one set out in the new Act. And, if the preceding question is answered in the affirmative, does the new section ...

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